Supreme Court hands down key ruling over meaning of planning framework

Two local authorities have lost appeals today to the Supreme Court, although judges did back the councils’ interpretation of a key part of the National Planning Policy Framework (NPPF).

This article is heavily based on the Supreme Court’s press summary. Read reaction to the ruling here.

The appeals in Suffolk Coastal District Council v Hopkins Homes Ltd and anor and Richborough Estates Partnership LLP and anor v Cheshire East Borough Council [2017] UKSC 37 related to the proper interpretation of paragraph 49 of the NPPF, as well as the NPPF’s relationship with the statutory development plan.

Under part 2 of the Planning and Compulsory Purchase Act 2004 local planning authorities are required to prepare a “development plan”. In preparing “local development documents” authorities must have regard to national policies and advice issued by the Secretary of State, pursuant to section 19(2). Section 38(6) of the 2004 Act and section 70(2) of the Town and Country Planning Act 1990 provide for the development plan to be taken into account in the handling of planning applications.

The NPPF was published on 27 March 2012. Paragraph 14 of the Framework deals with the “presumption in favour of sustainable development”, and includes what is known as the ‘tilted balance’ provision: that where the development plan is silent or policies out-of-date, permission should be granted unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”.

Paragraph 49 adds that: “Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”.

In the Suffolk Coastal case the district council refused planning permission for a development of 26 houses in Yoxford. This was upheld on appeal, with the inspector considering which local policies were “relevant policies for the supply of housing” within the meaning of paragraph 49 of the NPPF.

The High Court subsequently held that he had erred in thinking that paragraph 49 only applied to “policies dealing with the positive provision of housing” and so quashed his refusal. Its decision was confirmed by the Court of Appeal.

In Richborough Estates Cheshire East failed to determine the application, and Richborough Estates’ appeal was allowed by the inspector.

The council succeeded in the High Court on the basis that the inspector erred in treating one of the local policies as a relevant policy under paragraph 49 and in seeking “to divide the policy, so as to apply it in part only”. That decision was reversed by the Court of Appeal.

A five-justice panel of the Supreme Court – comprising Lord Neuberger (President), Lord Clarke, Lord Carnwath, Lord Hodge and Lord Gill – heard the case on 22 and 23 February 2017. Today they unanimously dismissed both councils’ appeals.

Lord Carnwath gave the lead judgment, with which Lord Neuberger, Lord Clarke and Lord Hodge agreed. Lord Gill gave a concurring judgment, with which Lord Neuberger, Lord Clarke and Lord Hodge agreed.

Lord Carnwath said the Secretary of State’s power to issue national policy guidance such as the NPPF derived, expressly or by implication, from the planning Acts which gave him overall responsibility for oversight of the planning system. This was reflected both in specific requirements and more generally in his power to intervene in many aspects of the planning process.

The Supreme Court judge said that in assessing the effect of the NPPF, it was important not to overstate the scope of this policy-making role.

“The Framework itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than ‘guidance’ and as such a ‘material consideration’ for the purposes of section 70(2) of the 1990 Act. It cannot, and does not purport to, displace the primacy of the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme.”

Lord Carnwath highlighted how the correct approach to the interpretation of a statutory development plan was discussed by the Supreme Court in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [23].

However, Lord Carnwath warned that it was important that the role of the court was not overstated.

He said that in Tesco Stores Lord Reed had identified the interpretation of the word “suitable” as the short point to determine, and further recognised that some policies in the development plan may be expressed in broader terms and not require the same level of legal analysis.

Lord Carnwath said these were statements of policy – whether in a development plan or in a non-statutory statement such as the NPPF – and “must be read in that light”; they were not statutory texts.

Lord Gill added that the Framework expressed general principles applied by more specific prescriptions. These must always be interpreted in the overall context of the guidance document. “That context involves the broad purpose of the guidance and the particular planning problems to which it is directed.”

Lord Carnwath stressed that the courts “should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”.

With the support and guidance of the Planning Inspectorate, inspectors had primary responsibility for resolving disputes between planning authorities, developers and others, over the practical application of the policies, national or local.

“Their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence,” Lord Carnwath suggested.

The Supreme Court judge acknowledged that recourse to the courts might “sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies, as in the Tesco case”. In that exercise the specialist judges of the Planning Court had an important role.

“However, the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two,” Lord Carnwath said.

Lord Gill, taking a similar approach to Lord Reed in the Tesco case, said he considered that the proper role of the courts as interpreting a policy or the NPPF where its meaning is contested, while that of the planning authority was to apply the policy or guidance to the facts of the individual case.

Lord Carnwath stated that the primary purpose of paragraph 49 of the NPPF was “simply to act as a trigger” to the operation of the “tilted balance” under paragraph 14.

He added that paragraph 14 – unlike paragraph 49 – was not concerned solely with housing policy. It needed to work for other forms of development covered by the development plan, for example employment or transport.

“Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out-of-date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgement, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example for transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgement, not dependent on issues of legal interpretation.”

Lord Carnwath said that if that was the right reading of paragraph 14 in general, it should also apply to housing policies deemed ‘out-of-date’ under paragraph 49, “which must accordingly be read in that light”.

He added: “It also shows why it is not necessary to label other policies as ‘out-of-date’ merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgement for the decision-maker.

Lord Carnwath said paragraph 49 appeared in a group of paragraphs dealing with the delivery of housing, with paragraph 47 providing the objective of boosting the housing supply. “In that context the words ‘policies for the supply of housing’ appear to do no more than indicate the category of policies with which we are concerned, in other words ‘housing supply policies’.”

The word ‘for’ simply indicated the purpose of the policies in question, the judge said. “I do not see any justification for substituting the word ‘affecting’ which has a different emphasis.”

This might be regarded as adopting the ‘narrow’ meaning, contrary to the conclusion of the Court of Appeal, Lord Carnwath said.

“However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within the expression. The important question is not how to define the individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47.”

The Supreme Court judge continued: “If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14.

“As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.”

The Court of Appeal was therefore right to look for an approach which shifted the emphasis to the exercise of planning judgement under paragraph 14. “However, it was wrong, with respect, to think that to do so it was necessary to adopt a reading of paragraph 49 which not only changes its language, but in doing so creates a form of non-statutory fiction.”

On both appeals, however, the Supreme Court reached the same result as the Court of Appeal.

In Richborough Estates the inspector had erred in treating policy NE.2 as a “policy for the supply of housing” under paragraph 49, but that did not detract materially from the force of his reasoning.

In Suffolk Coastal the inspector’s approach was open to criticism because his categorisation of SP 19 and SP 27 was inappropriate and unnecessary, rather than erroneous as the Court of Appeal held. It nevertheless gave rise to an error of law insofar as it may have distorted his approach to paragraph 14.